Obscenity

With 12 Beholders, You Just Need One to Say It Might Be Art

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It looks like U.S. District Judge Geoge H. King, who presided over the Ira Isaacs obscenity case in Los Angeles, may have been right to worry about jury nullification. "After less than three hours of deliberation" on Monday, AVN correspondent Mark Kernes reports, "one juror reportedly sent a note to Judge King charging that one of the other jurors had said that he/she did not believe in the obscenity laws." The judge then called the jurors into the courtroom, adminished them that "it was their sworn duty to follow the law as he had given it to them," and sent them back to deliberate some more. They adjourned at 2 p.m., and shortly after they resumed the next morning they sent King another note saying they could not reach a verdict, which was still the case even after King resorted to the "nearly unheard-of" measure of instructing the defense and prosecution to reprise their closing arguments. Convinced that the jurors had reached an irresolvable impasse, King dismissed them and declared a mistrial.

Isaacs, who said he had spoken to one of the jurors, told Kernes there were two holdouts, both women. "She basically said that her and another juror thought that this was art, serious art, and had artistic value, and should not be found obscene," the self-described "shock artist" said. At first, Isaacs said, 11 jurors were inclined to convict, but later one of them "changed her mind and said, 'You know, I do think it has artistic value, and there's reasonable doubt that they proved their case.'"

Those two jurors may very well have drawn that conclusion, but it is also the sort of thing you would say if you "did not believe in the obscenity laws" but wanted to avoid giving the impression that you were willfully ignoring the judge's instructions. Jurors, after all, are supposed to judge the facts, not the law (or so judges typically claim nowadays, ignoring a venerable tradition to the contrary). This case, however, did not really hinge on facts, since no one disputed Isaacs' involvement in producing or distributing the four films at issue (Mako's First Time ScatHollywood Scat Amateurs 7 and 10, and Japanese Doggie 3 Way). Instead, as the Supreme Court decreed in Miller v. California, it hinged on utterly subjective answers to these three questions:

a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Let's leave aside imponderables such as "the average person," "community standards," and patent offensiveness. Isaacs' movies, which feature scatology and bestiality, are—what's the legal term again? Oh yeah: really gross. They were so gross that the jurors had trouble watching them, which makes you wonder how they could assess them "taken as a whole." In any case, it seems fair to assume that Isaacs, who faced a possible sentence of 20 years, would have been a goner were it not for that third prong, which is what he and his lawyer emphasized: serious artistic value, a "fact" that supposedly can be determined by 12 randomly selected people. If you happen to be one of them and believe this whole enterprise is an absurd legal charade, and furthermore that it is inherently unjust to lock people up for distributing dirty movies made by and for consenting adults, you could openly make that argument, which would get you into hot water with the judge, or you could simply say you have a reasonable doubt about whether the movies lack serous artistic value. Since this whole enterprise is in fact an absurd legal charade, how could anyone possibly prove you were lying?

Isaacs' prosecution was initiated during the Bush administration. His first trial was halted due to the controversy over Judge Alex Kozinski's collection of dirty jokes, so Isaacs has now had two mistrials. If the Justice Department tries him again, he will have a third, even if the jury convicts him.

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  1. At some point, do prosecutors just admit they’ve failed and go find somebody else to harass?

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  2. It would be sooo pleasing to be one of those dissenting jurors.

  3. Here’s one other possible prong:

    Don’t the obscenity laws specify that the material has to appeal to the prurient interest?

    So wouldn’t that mean that if I as a juror find the material too disgusting to be titillating, I have to conclude that it doesn’t so appeal?

    1. They knew it when they saw it.

    2. are you implying something with the word “prong”?
      Of course, anybody who uses the word titillating loves titties…

    3. Also, anyone whose daily life is so degenerate that they don’t find anything either shocking or titillating.

        1. Hey, I resemble that remark.

      1. I find plenty of things shocking and/or titillating (aren’t titties tilliating by definition?…well, except old saggy titties).
        But I would say the movies had neither.
        Enemas are a common occurence (I was in a hospital where the guy next to me got a daily enema and he seemed to look forward to it WAY too much). Pooping is a daily occurence for the vast majority of people. Most people aren’t sexually excited by it. But for the small number that are, why would anybody care? Nobody had to see it. I understand that no gerbils were harmed in the making of the films. I do have say I am now curious about sequels 8 & 9 – were they not considered for prosecution because they were fawned over by the critics? (People – its just opinions! Don’t pay any attention to the two guys in the balcony).

    4. Along those lines, my thought is that if it makes you ill (instead of aroused) to watch, its art, not porn.

      1. Not that porn cant also be art.

      2. What if you’re one of those people who isn’t really impressed by anything, no matter how disgusting or degenerate it is?

        1. Boring also means it is art.

  4. Is he some sort of hybrid clone of Penn Jillette and Edward James Olmos?

    1. With maybe a little Stevie Van Zandt thrown in.

  5. “Let’s leave aside imponderables such as “the average person,” “community standards,” and patent offensiveness”

    You guys are way too smart for me. I can’t even figure out Holder’s judiciary process is different than due process…cause I was thinking “due process” is “judicial process”…but I ain’t got no law degree

  6. http://www.youtube.com/watch?v=td3p2XKHP2M

    The trial was a travety of a mickery of a sham…

    1. whoa…bad, bad, bad spelling
      a travesty of a mockery of a sham…

      1. Feel free to slam the Irish. We’re equal opportunity haters around here.

      2. Bananas, right? Or am I mixing up my earlier, funnier Woody Allen movies?

        1. Well, it was Groucho Marx first, and than Woody make a mockery of a sham of a travesty of a sham of a mockery
          http://www.youtube.com/watch?v=sYp9WtbMo2k

          1. Credit to the great Groucho, then.

  7. Isaacs has now had two mistrials. If the Justice Department tries him again, he will have a third, even if the jury convicts him.

    What does this mean, exactly? Is it just snark, or did you mean mistrial in the legal sense?

    1. The first was declared a mistrial and after two jurors refused to convict, after that one who explicitly mentioned not believing in obscenity laws–a hero in my book–the judge apparently:

      Convinced that the jurors had reached an irresolvable impasse, King dismissed them and declared a mistrial.

      So Isaacs unfortunately is still not in the clear. (and fuck judge King)

      1. I meant about the third one. Seems bold to predict a guaranteed mistrial.

  8. Hopefully, someone in the movie was dressed as a nun
    http://www.artsandopinion.com/…..christ.htm

  9. If Bear Grylls can drink liquid from elephant shit on tv, then I fail to see how naked women eating excrement (whether real or fake) is obscene.

    1. I’m sure Zimmer has done worse.

  10. I am very glad for Isaacs.

    Most people would have decided to settle (for less jail time, still with felony record). I also feel that being held in Los Angeles gave him a chance. There have been several successful obscenity convictions over much more tame stuff in Texas and Florida (in a few cases, comic books)

    1. Oh, and

      “After less than three hours of deliberation” on Monday, AVN correspondent Mark Kernes reports, “one juror reportedly sent a note to Judge King charging that one of the other jurors had said that he/she did not believe in the obscenity laws.” The judge then called the jurors into the courtroom, adminished them that “it was their sworn duty to follow the law as he had given it to them,” and sent them back to deliberate some more.

      .. they could not reach a verdict, which was still the case even after King resorted to the “nearly unheard-of” measure of instructing the defense and prosecution to reprise their closing arguments

      FUCK that asshole judge

      1. I said in thread the other day, he should be disbarred (not just removed from the bench) for giving instructions that explicitly ban the use of nullification.

        1. But the law is the law is the law is the law is the law.

          1. And he got the law wrong.

            Jay made this clear more than 200 years ago. He considered it the judge’s OBLIGATION to inform juries of the right to nullification.

            1. Except now judges view their job as defending the law, even if it is wrong. Especially if it is wrong. Because that is where they derive their power. And power is all that matters.

            2. “It is not only his right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

              -John Adams

            3. Sadly the slightest mention of “jury nullification” is guaranteed to result in the judge declaring a mistrial, like what happen here, or contempt of court

          2. The law should have a precise and scientific definition for ‘artistic’ Something so logical that a computer couldjudge if it is artistic or not. ‘Artistic’ is subjective.

            The law should restate ‘prurient’ to define tho whom it is prurient. The majority does not find scat and bestiality as ‘prurient’ that find it disgusting. is sex with a cadaver ‘prurient’ Yes. it is prurient to necrophiliacs. Is a nude baby angel in a church prurient? Yes, it is prurient to those who are pedophiles. Do you see now the need to redefine to whom it is prurient?

            Note that scat can be found on Internet for free without purchasing the videos. Same for bestiality. Why the authoritries do not fight against such sites that distibute free scat and bestiality?

  11. AVN correspondent Mark Kernes reports, “one juror reportedly sent a note to Judge King charging that one of the other jurors had said that he/she did not believe in the obscenity laws.” The judge then called the jurors into the courtroom, adminished them that “it was their sworn duty to follow the law as he had given it to them,” and sent them back to deliberate some more.

    The jury of one’s peers is not obligated to blindly condemn or free a man based on black letter or the judge’s interpretation of that letter.

    I would be interested to hear Judge King’s opinion as to why a jury should be expected to convict a man in the name of a law they do not agree with, do not understand, or do not believe applicable, to the facts as the prosecution or defense has presented. If a juror must subordinate his reasoning and morals to the judge’s instruction, why bother with a jury trial at all?

    1. Did the jury even get the actual text of the law, or just the judges interpretation of it? My wife was recently on a jury and they weren’t even given the actual law that the defendant was charged under. I was not pleased. Especially since the trial only lasted one day and I didn’t have a chance to encourage her to cause some trouble (it was some bullshit obstruction of justice charge).

      1. Obstruction of justice is a bullshit charge in general, usually used to frighten people into testifying or pleading to other charges.

        “I didn’t see anything, I didn’t hear anything, and if I was there I was asleep” is a better answer than “I refuse to testify.”

        1. It was even dumber than that. It was actually related to some Free-Stater anarchisty types doing some sort of civil disobedience thing in Keene, NH.

          1. I think that the obstruction of justice part came from the girl who was charged standing in front of a police car after her friend was arrested for public drinking (while having her tits painted).

            1. Certainly can’t have anything so obscene as painted tits bouncing around in the breeze.

              What if there are CHILDRUNS about?

              1. Actually, that part was legal.

    2. You do NOT have a right to jury by your peers. That is an English Common Law provision that keeps nobles and commoners from sitting in judgement of the other.

      As for the judge’s instruction – fuck your Honor.

  12. How is it again that obscenity laws are still on the books? Seems like a pretty clear first amendment case.

    On the subject of art, if just one person in the world thinks it’s art, then it’s art. Even if that one person is the person who created it. So even if the obscenity laws are in place, it should be completely impossible to convict someone.

    1. The SC have made an exception since the Comstock days, even though there have been some dissenting opinions.

      How it works and the way they are able to get around 1st amendment issues in their view is that it leaves it leaves obscenity as “unprotected speech”, but not banned speech. Laws that have been made to prohibit specific types of speech, like specific depictions of various acts have always been struck down in Federal courts on 1st amendment grounds. But laws that rely on obscenity–which can only be legally judged in court, is ultra-relative, and never determined beforehand–are allowed.

      Obscenity technically doesn’t ban anything. You can be convicted for the exact same work somebody else was found not guilty of. It is analogous to removing the speed limit, but still making it illegal to go “too fast”, except that is determined by whoever is making the decision that day.

      1. It’s also ironic because CA law actually allows the sale of obscene works, as long as it’s restricted to 18+, and even for those under 18, the law explicitly makes an exception for legal guardians.

        This case–a federal case–is another instance where the Commerce Clause rears its ugly head as usual. From:
        http://articles.latimes.com/20…..e-obscene9

        Hollywood filmmaker Ira Isaacs says the videos he sells are works of art, protected under the Constitution. Federal prosecutors contend they are criminally obscene.

        The prosecution is the first in Southern California by a U.S. Department of Justice task force formed in 2005 after Christian conservative groups appealed to the Bush administration to crack down on smut.

  13. First they came for the scat porn… and I didn’t speak out because I thought scat porn was gross.

    Then they came for the BDSM porn… and I didn’t speak out because I thought BDSM porn didn’t turn me on.

    Then they came for the gay porn… and I didn’t speak out because I was not gay.

    Then they came for the vanilla hardcore porn… and there was no one left to speak out.

  14. Wow – that makes a lot of sense when you think about it

    LOL!

    1. … can’t be a bot, you spelled everything corectly …

  15. [O]ne of the other jurors had said that he/she did not believe in the obscenity laws.

    Jury nullification: you’re doing it wrong. You never tell them.

  16. I’m with the Juror, Obscenity laws are subjective bullshit.

    How in the hell can they say that the vastly diverse metropolitan area of Los Angeles has one monolithic “community standard” for obscenity?

    1. What’s the “community standard” for Fernando Valley?

      That standard is so damn objective the juror could of had fun asking the judge to explain what exactly it means.

  17. I’ve seen plenty of cases where I’d go my own way in the jury room.

    Recent case: man on trial for molesting a boy. Man admits that he molested the boy’s older brothers years ago, but he cannot be charged with that because of insane laws that allow a statute of limitations on molestation. Man claims he didn’t molest *this* boy, though.

    I wouldn’t care. Even if I was convinced he didn’t molest the current boy, I’d find him guilty to punish him for the previous crimes to which he freely confesses. And I’d sleep like a baby that night.

  18. a) I do not see how the average person can find this gross media “prurient” using community standards. Only those in a community of scat and bestiality could find this prurient. See? Prurient to whom? To the average person or to those who like these themes or to the majority? Failure to convict if instruction is taken.

    b) Yes it offensive because disgusting. This point is met. However you need all three points to convict. See what ‘prurient’ is http://en.wiktionary.org/wiki/prurient

    c) Some artistic work is meant as shock and is extremely insulting to some people. Example ‘Piss Christ’ see http://en.wikipedia.org/wiki/Piss_Christ The work that Isaac did achieves the artistic intent of shock by disgust. See what is artistic is not precise. it is biased. A music graduate who truly appreciate classical music might find rap music as non-artistic noise. What is artistic is subjective.

    1. Stop trying to be rational about this.

      Also, bossy-girls.net looks pretty artistic to me. 😉

  19. This is like the coolest stuff dude.
    http://www.Got-Privacy.tk

  20. If the Justice Department tries him again, he will have a third, even if the jury convicts him.

    Bravo!

  21. If the Taliban or the Holy Inquisition laws were to rule the land. I would know immediately what is obscene and would not do it. Nor would I question the wisdom of the laws. Moreover, I would not go out with a naked face in a Taliban ruled land. A woman with a naked face is obscene.

    1. A miniskirt would be obscene to the Holy Inquisition

  22. Can someone who understands these things explain exactly what’s supposed to happen, with regard to the jury, for a legitimate conviction or acquittal? Do all 12 jurors have to vote “not guilty,” and if one or two votes otherwise, the state can just keep trying till they get 12? That’s not how it works in the movies, but is that not what’s going on here?

    1. In a criminal case, the jury verdict has to be unanimous or the result is a hung jury. There are three possible results

      Conviction – All twelve jurors vote to convict and the defendant faces whatever penalty is imposed.
      Acquittal – All twelve jurors vote to acquit. The defendant is found not guilty. He suffers no punishment (other than the time, cost of his trial + the fact that he may have been in jail for the duration). He cannot be retried for the same offense.
      Hung Jury – The jury is not unanimous. The trial doesn’t count. The prosecutor can elect to retry the defendant, no matter how many previous trials have resulted in a hung jury. Usually, the prosecution will give up after one or two hung juries. Also, if the prosecution knows that the majority of jurors voted for acquittal, it’s more likely to give up without further trials.

  23. no such thing as art. Entertainment yet; art no. Or all art is just entertainment given a stamp

  24. The only thing obscene here is when the judge said:

    “it was their sworn duty to follow the law as he had given it to them,”

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